MacQueen v. Canada (Attorney General), 2014 NSCA 73

Nova Scotia Court of Appeal Citation: MacQueen v. Canada (Attorney General) , 2014 NSCA 73 Date: 20140715 Docket: CA 392560 Registry: Halifax Between: The Attorney General of Canada, representing Her Majesty the Queen in Right of Canada Appellant v. Neila Catherine MacQueen, Joseph M.

Pettipas, Ann Marie Ross, Kathleen Iris Crawford, Sydney Steel Corporation, a body corporate, The Attorney General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia Respondents Docket: CA 393200 Registry: Halifax Between: Sydney Steel Corporation, a body corporate, and The Attorney General of Nova Scotia, representing Her Majesty the Queen in right of the Province of Nova Scotia Appellants v. Neila Catherine MacQueen, Joseph M.

Pettipas, Ann Marie Ross, Kathleen Iris Crawford, and the Attorney General of Canada representing Her Majesty the Queen in right of Canada Respondents Judge: The Honourable Justice Linda Lee Oland Motion Heard: By Written Submissions dated as follows: Respondents’ Factum: April 4, 2014 Attorney General of Canada’s Factum: April 17, 2014 Attorney General of Nova Scotia’s Factum: April 22, 2014 Subject: Reconsideration – Functus Officio – Inherent Jurisdiction

Summary: On December 4, 2013, this Court issued its decision and order in Canada (Attorney General) v. MacQueen , 2013 NSCA 143 . The respondents seek the Court’s reconsideration, arguing that subsequent decisions of the Supreme Court of Canada should be taken into account. The Chambers judge directed a hearing on the jurisdictional issue, which proceeded on written submissions filed by the parties. Issues: Does this Court have the jurisdiction to reconsider its decision and order.

Result: The respondents’ intended Motion for Reconsideration will not proceed to a hearing. The doctrine of functus officio provides that, in general, once a court has issued its decision and order, the matter may be reconsidered only by an appeal to a higher court. The respondents’ argument that this Court possesses inherent jurisdiction which extends to reconsideration of the merits of its own decision and order need not be determined, as the respondents have not demonstrated “extraordinary, compelling and exceptional circumstances” or that “justice manifestly requires” a reconsideration.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 14 pages. Nova Scotia Court of Appeal Citation: MacQueen v. Canada (Attorney General) , 2014 NSCA 73 Date: 20140715 Docket: CA 392560 Registry: Halifax Between: The Attorney General of Canada, representing Her Majesty the Queen in Right of Canada Appellant v. Neila Catherine MacQueen, Joseph M.

Pettipas, Ann Marie Ross, Kathleen Iris Crawford, Sydney Steel Corporation, a body corporate, The Attorney General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia Respondents Docket: CA 393200 Registry: Halifax Between: Sydney Steel Corporation, a body corporate, and The Attorney General of Nova Scotia, representing Her Majesty the Queen in right of the Province of Nova Scotia Appellants v. Neila Catherine MacQueen, Joseph M.

Pettipas, Ann Marie Ross, Kathleen Iris Crawford, and the Attorney General of Canada representing Her Majesty the Queen in right of Canada Respondents Judges: Oland, Farrar and Bryson, JJ.A.

Motion Heard: By Written Submissions dated as follows: Respondents’ Factum: April 4, 2014 Attorney General of Canada’s Factum: April 17, 2014 Attorney General of Nova Scotia’s Factum: April 22, 2014 Held: The Respondents’ intended Motion for Reconsideration will not proceed to a hearing on its merits, per reasons of Oland, J.A.; Farrar and Bryson, JJ.A. concurring. Counsel: Agnes E. MacNeil, Alex Cameron and Alison W. Campbell, for the appellants Attorney General of Nova Scotia and Sydney Steel Corporation Paul Evraire, Q.C., Angela Green and Melissa Chan, for the appellant Attorney General of Canada Raymond W.

Wagner, Q.C. and C. Scott Ritchie, Q.C. for the respondents Neila Catherine MacQueen, Joseph M. Pettipas, Ann Marie Ross and Kathleen Iris Crawford Reasons for judgment: [ 1 ] Seldom does a party ask a court which rendered its decision and issued its order, to reconsider. That is precisely what the respondents now request. However, before there can be any review of the merits of any reconsideration, the question of this Court’s jurisdiction, in the particular circumstances before it, must be examined. Background [ 2 ] The respondents seek a reconsideration of this Court’s decision in Canada (Attorney General) v.

MacQueen , 2013 NSCA 143 . In that decision dated December 4, 2013, the Court allowed the appellants’ appeal from a decision and order of Nova Scotia Supreme Court which had certified the respondents’ action as a class action. The order of this Court issued on the same day as its decision. [ 3 ] On February 25, 2014, the respondents filed a Motion for Directions on their intended Motion for Reconsideration. In the weeks following this Court’s decision and order, the Supreme Court of Canada issued what the respondents describe as two “highly relevant authorities” pertaining to class actions, namely, AIC Limited v.

Fischer , 2013 SCC 69 and Vivendi Canada Inc. v. Dell’Aniello , 2014 SCC 1 . They submit that, had this Court applied the reasoning in Fischer and Vivendi , it may well have reached a different conclusion, and their action could now be proceeding to trial. [ 4 ] At the hearing of the Motion for Directions, the appellants contested this Court’s jurisdiction to hear the Motion for Reconsideration. The Chambers judge ordered the parties to file written submissions on the jurisdictional issue, to the panel that rendered the decision the respondents wish to have reconsidered.

The judge also reserved a date for oral arguments if determined by the panel to be necessary. After receiving the written submissions, the panel advised the parties that oral submissions were not required. [ 5 ] In this decision, I make no comment whatsoever as to the content, application or materiality of the Fischer and/or Vivendi cases to the decision rendered by this Court. Issue [ 6 ] The only issue at this stage is this: Does this Court have the jurisdiction to reconsider its decision and order?

For the reasons which follow, I would conclude that the intended Motion for Reconsideration should not proceed to a hearing. Analysis [ 7 ] It is important to keep in mind that, in this case, the Court issued its order. That is because in assessing reconsideration motions, the courts have distinguished between those where the order had not yet issued although the decision had been made, and those where the order had issued. See, for example, Burke v. Sitser , 2002 NSCA 115 at ¶ 7 and 8 , and Pennecon Energy Ltd. v. Metal World Inc. , 2014 NLCA 10 at ¶ 13 .

My analysis will deal only with the latter, as that is the situation here. [ 8 ] Once a court has issued its order, the general rule is that it cannot re-open the decision. See, for example, Midland Doherty Ltd. v. Rohrer , [1985] N.S.J.

No. 121 (S.C.A.D.) , where MacKeigan, C.J. stated: [5] Once a final order is issued on appeal this Court has prima facie no jurisdiction to open the appeal to grant a new hearing of the appeal or to correct any substantive error made by it on the appeal; a party aggrieved by our error must ordinarily look for remedy to the Supreme Court of Canada, if appeal to that Court is available. [ 9 ] Although he did not use the term, what MacKeigan, C.J. described was the effect of the common law doctrine of functus

officio. In Nova Scotia Government and General Employees Union. v. Capital District Health Authority, 2006 NSCA 85, Cromwell,J.A. (as he then was) explained the principles relating to functus officio: [36] Functus officio is a rule about finality: once a tribunal has completed its job, it has no further power to deal with the matter. Inrelation to court proceedings, the principle means that, in general, once a court has issued and entered its final judgment, the matter mayonly be reopened by means of appeal.

To this general rule, however, there are at least two exceptions: the court may correct slips and, aswell, address errors in expressing its manifest intent: Paper Machinery Ltd. v. J.O. Ross Engineering Corp., (SCC),[1934] S.C.R. 186; see also Civil Procedure Rule 15.07. [37] These principles developed in the context of court decisions which are subject to full rights of appeal.

The existence of these fullrights of appeal fostered the view that an appeal, rather than a reopening of the case before the initial decision-maker, was generally thepreferred way to address errors in the initial decision. [10] In regard to finality, the policy rationale underlying functus officio, the Supreme Court of Canada in Doucet-Boudreau v. NovaScotia (Minister of Education), 2003 SCC 62 elaborated: 79 It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal (see alsoReekie v. Messervey, (SCC), [1990] 1 S.C.R. 219, at pp. 222-23).

This makes sense: if a court could continually hearapplications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launchan appeal. … [11] As Capital District Health pointed out, there are at least two exceptions to the doctrine of functus officio. These allow a court tocorrect slips and to address errors in expressing its manifest intent. See also Doucet-Boudreau at ¶113. [12] Our Civil Procedures Rules contain provisions which permit such corrections and amendments.

See, for example, Rules78.08, 82.22(1) and, specifically for judgments of this Court, Rule 90.50(2). [13] The respondents do not rely on either of these exceptions to the functus officio doctrine, or on any of the Rules which could beapplicable. [14] As the jurisprudence I have quoted has explained, generally, once a court has issued its decision and order, the matter may onlybe reconsidered by means of an appeal to a higher court. The decisions of this Court are subject to appeal to the Supreme Court ofCanada. The respondents have taken steps to seek leave.

By Order dated February 17, 2014, Justice Cromwell of the Supreme Court ofCanada granted their motion to extend the time to serve and file their Application for Leave to Appeal this Court’s decision, to tenbusiness days after our decision on their intended Motion for Reconsideration. [15] On what, then, do the respondents rely in seeking to bring a motion for reconsideration by this Court? Their arguments arebased on inherent jurisdiction. They maintain that this Court possesses the inherent jurisdiction to deal effectively with matters properlybefore it.

The respondents argue that the scope of that jurisdiction permits the Court to reconsider its own orders in exceptionalcircumstances, and that its inherent jurisdiction is not extinguished by the doctrine of functus officio. [16] I turn to an examination of inherent jurisdiction in general, and then with regard to this Court. In MacMillan Bloedel v.Simpson, (SCC), [1995] 4 S.C.R. 725 at ¶29, Lamer C.J. for the majority described the

article on the inherentjurisdiction of superior courts by I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Current Legal Problems 23 (the “JacobArticle”), as “seminal”.

At p. 51 of the Jacob Article, the author wrote: In this light, the inherent jurisdiction of the court may be defined as being the reserve or fund of powers, a residual source ofpowers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observanceof the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial betweenthem. [17] In Halifax (Regional Municipality) v.

Ofume, 2003 NSCA 110, Saunders J.A. stated at ¶21 that there is ample authority thatCanadian superior courts possess inherent jurisdiction to control their own procedures. He quoted from Montreal Trust Co. v. ChurchillForest Industries (Manitoba) Ltd. (1971), (MB CA), 21 DLR (3d) 75 (Man. C.A.), where Freedman, C.J.M. observedat p. 81 with regard to inherent jurisdiction and the Jacob Article: Certain other features of inherent jurisdiction pointed out by Master Jacob are relevant for us to note.

Inherent jurisdiction is derived notfrom any statute or rule but from the very nature of the Court as a superior Court of law: "The jurisdiction which is inherent in a superiorcourt of law is that which enables it to fulfil itself as a court of law." (p. 27). Inherent jurisdiction cannot, of course, be exercised so as toconflict with a statute or rule.

Moreover, because it is a special and extraordinary power, it should be exercised only sparingly and in aclear case. [Emphasis added] [18] In reviewing inherent jurisdiction, Saunders J.A. spoke of “efficiency”, “fairness” and “effectiveness” in the operation of thecourts: [40] … In the instant case the discretion exercised by Justice MacAdam derives from the Court’s inherent jurisdiction to control its ownproceedings. I see this control as fundamental to a court that derives its power and existence not from statute but from the Constitution. The operation of the court is a necessary function of our society.

The inherent jurisdiction which helps to maintain the efficiency andfairness of such a court is something far greater than the jurisdiction to correct substantive problems, as was considered in Baxter. Theinherent jurisdiction exercised by the Chambers judge here is the kind of jurisdiction spoken of by Lord Morris in Connelly, supra,quoted in Montreal Trust Co., supra, which gives rise to the “powers which are necessary to enable [a court] to act effectively”. [Emphasis added]

[19] The caution given in Montreal Trust that inherent jurisdiction should be exercised “only sparingly and in a clear case” was citedwith approval by Dickson, J. (as he then was) in Baxter Student Housing Ltd. et al. v. College Housing Cooperative Ltd. et al., (SCC), [1976] 2 S.C.R. 475 at ¶15. Similarly, in Lord v. Smith, 2013 NSCA 34, Farrar J.A., writing for this Court, stated: [29] Despite its large scope and flexibility, inherent jurisdiction is not available for use in every situation. As Chief Justice MacDonaldin [Central Halifax Community Association v.

Halifax (Regional Municipality), 2007 NSCA 39] observed: ...[Inherent jurisdiction]remains a safety net that can prevent abuse in those truly exceptional cases. (¶44) It must be exercised judicially and with caution. It istypically limited to procedural matters. It cannot effect changes in the substantive law, and it cannot be exercised so as to contravene alaw. [Emphasis added] See also Marshall v.

Truro (Town), 2009 NSCA 89 at ¶10-12. [20] I next address the jurisprudence on which the respondents rely for their argument that this Court has inherent jurisdiction whichextends beyond procedural matters and control of its proceedings in order to act efficiently, fairly and effectively, to a reconsideration ofthe same decision and order which it had issued. They base their submissions largely on two decisions: Country View Ltd. v. City ofDartmouth (No. 2), [1974] N.S.J.

No. 271 (S.C.A.D.) and Midland Doherty. [21] In Country View, after the Court had rendered and filed its decision, the appellant applied to have further evidence received. That affidavit evidence purported to establish that a by-law on which the Court had relied, had not been validly passed. The panel of twojudges granted leave for the tendering of that evidence, and considered it and other evidence in rendering a second decision on the sameissues. It is noteworthy that Country View does not refer to the doctrine of functus officio.

Nor does it address the question of thejurisdiction of the Court to reconsider its decision. [22] In Midland Doherty, the Court dismissed an application for rehearing to vary a costs order which was previously made by thesame panel. As explained earlier, MacKeigan, C.J.N.S., writing for the Court, stated that once a final order had issued, the court had nojurisdiction to grant a new hearing of an appeal or to correct any substantive error.

After holding that the Civil Procedure Rules raised bythe applicant did not assist, he stated at ¶14 that he was not persuaded that “we can or should amend the order of this Court”. [23] MacKeigan, C.J.N.S. then continued: 15 This Court, I conceive, is not limited in jurisdiction as some statutory Courts may be. Its jurisdiction is that of the Supreme Court asoriginally established long before the Judicature Act of 1884. ...

After setting out certain provisions from that statute and from the Judicature Act, S.N.S. 1972, c. 2, he stated: 16 This Court under these ancient powers has, I am sure, jurisdiction to rehear an appeal or part thereof where justice manifestlyrequires and has doubtless done so in some very exceptional cases. One I recall is County [sic] View Ltd. v.

City of Dartmouth (No. 2)(1974), (NS CA), 10 N.S.R. (2d) 361 (N.S.C.A.), where, after the death of Chief Justice McKinnon who had sat onthe appeal, the other two Judges saw fit to hear new evidence and argument and to render judgment anew. [Emphasis added] He then reiterated that nothing that he had heard persuaded him that the court should exercise “any such vestigial powers”, and dismissedthe application for a rehearing. [24] It is arguable that the passage on inherent jurisdiction in Midland Doherty was not integral to the result, and thus obiter dicta.

The case was judicially considered by this Court in Nova Scotia (Director of Assessment, Municipal Board) v. D. Porter & Son Ltd.,[1986] N.S.J. No. 510 (N.S.C.A.); Hoffman v. Lamb, 2003 NSCA 101 (Chambers); and Kern v. Steele, 2004 NSCA 71. A review ofthese decisions on the existence and scope of inherent jurisdiction and reconsideration is instructive. [25] In D. Porter, the successful appellant asked the Court to change its order in regard to costs.

Jones, J.A., for the Court, quotedthe passage from Midland Doherty that, once the final order issued, the Court has prima facie no jurisdiction to re-open the appeal. Hestated that he did not think that, “assuming that this Court has power to do so”, sufficient grounds had been shown to set aside the order. [26] In Hoffman, a Chambers judge had granted the Registrar’s motion to dismiss the applicant’s Notice of Appeal for failure toperfect, in 2001. More than two years later, the applicant applied for an extension of the time for filing a Notice of Appeal.

Bateman,J.A. in Chambers stated in ¶5 that what the applicant seeks is a decision of the Court permitting the “re-hearing” of his appeal, and that“if the jurisdiction exists to permit a re-hearing of the appeal, and I make no finding in that regard, it rests with a panel of the Court andnot with a single Chambers judge.” Her decision read in part: 8. Counsel has not cited any authority from this Court in support of the assertion that we have the power to re-hear an appeal.

There isauthority to that effect in other Canadian jurisdictions, in some cases turning on specific Rules of Court or legislation expresslypermitting the re-opening of an appeal. No comparable provisions exist in Nova Scotia. . . .” After referring to Midland Doherty, she continued: 10 It is not clear from the decision in Midland, supra, whether the jurisdiction to re-hear extends to appeals which have been decided onthe merits, or is limited to cases where an appeal has been summarily dismissed. To my knowledge, Midland has not been subsequently

considered by this Court. In other jurisdictions it has been held that any power to re-hear extends only to appeals which have not beenresolved on their merits. (See, for example, R. v. H. (E.) (1997), (ON CA), 33 O.R. (3d) 202 (Ont. C.A.)). It isunnecessary for me to consider the scope of any such jurisdiction, in that this appeal was dismissed on a Registrar’s motion and,therefore, not heard on the merits.

Bateman, J.A. determined that the application should be entertained as an application for a re-hearing and referred it to a panel. [27] In Kern, the parties had addressed costs only briefly and without any specific reference to disbursements. After the Courtrendered its decision and order which included awarding the appellant costs of $2,800 including disbursements, the appellant advisedthat her disbursements were more than $13,000 and sought an amendment to the costs award.

This Court stated: [2] In extraordinary, compelling and exceptional circumstances, this court has the authority to rehear a part of an appeal afterjudgment where justice manifestly so requires: Rohrer v. Midland, [1985] N.S.J. No. 121 (N.S.C.A.) at § 16. ... It held a rehearing by way of written argument from the parties, restricted to the question of whether the original order gave rise to aninjustice sufficient to cause it to alter the costs order. It decided that the original order resulted in such an injustice and amended its orderto provide that disbursements be taxed or as agreed.

This was a situation where this information should have been brought to theattention of the Court prior to its rendering its decision, but was not.

Had it been presented, the Court would have included it indetermining costs. [28] Having reviewed the jurisprudence of this Court on inherent jurisdiction, it is my view that, whatever inherent jurisdiction thisCourt may possess to re-open a decision after its order issued, it will exercise it only in “extraordinary, compelling and exceptionalcircumstances” “where justice manifestly so requires”. [29] In arguing that the circumstances here meet those criteria, the respondents point to authorities from various Canadian appellatecourts. However, those decisions are largely distinguishable. In R. v.

Oliver, 1996 CarswellAlta 680 (C.A.); Agriculture FinancialServices Corp. v. Redmond, 1998 CarswellAlta 507 (C.A.); and Green v. Canadian Imperial Bank of Commerce, 2014 ONCA 90, thecourts were asked to reconsider earlier rulings in different cases, rather than the merits of their own decisions in the same case. [30] In Bell, Re, 1947 CarswellOnt 318, the moving party sought reconsideration on the basis of new evidence discovered afterjudgment had been pronounced.

As in Country View, the court agreed to receive that evidence and there is no mention of functus officioor any discussion of the jurisdiction to reconsider. Importantly, the parties consented to the request. [31] It is apparent from the case law that, in Alberta, court practice permits re-argument before the Court of Appeal if leave isgranted on motion. However, the decisions the respondents have identified are not helpful. In Red Deer College v. W.W. Construction(Lethbridge) Ltd., 1990 ABCA 20, the application to the Court of Appeal for leave to reargue the appeal alleged that the Court hadmisstated the issue.

It was brought only after the Supreme Court of Canada denied leave to appeal, and the application was dismissed. In Strichen v. Stewart, 2005 ABCA 201 (C.A.), the leave application alleged that the Court had misapprehended or overlooked evidence. The Court stated: [5] The general test for leave to re-argue requires exceptional, special or unusual circumstances. This Court has taken the position thatre-hearings are to be discouraged: Portage Credit Union Ltd. v. D.E.R. Auctions Ltd. (#2) (1994), 1994 ABCA 50 , 18 Alta.L.R. (3d) 185.

It held that the applicant had not established such circumstances and denied leave. [32] The respondents directed our attention to the 2014 decision of the Newfoundland Court of Appeal in Pennecon Energy. However, the passage they cited from ¶8 dealt with the question of whether leave is required for a reconsideration by the Court ofAppeal, and not any question as to jurisdiction.

Moreover, Welsh J.A., writing for the Court, on the factors to be considered in anapplication for reconsideration re-iterated the importance of finality: 12 The reluctance to re-open a decision already rendered flows from the principle of finality on which judicial decisions are based.The underlying theme is that the appropriate avenue to challenge a decision is through the appeal process. (See, for example, Reekie v.Messervey, (SCC), [1990] 1 S.C.R. 219, at pages 222 to 223.) At ¶17, she set out a non-exhaustive

summary of grounds, including fraud and misrepresentation, for a reconsideration application afterthe final order has been filed. None are applicable here. [33] For their part, in addition to emphasizing finality and functus officio, the appellants point to Ayangma v. French School Board,2011 PECA 3. There, after the decision and order dismissing his appeal were entered, the appellant asked the court to reconsider. Hismotion was made pursuant to the rules of court allowing the amending, setting aside, or varying of court orders.

At ¶ 8, Jenkins,C.J.P.E.I., for the Court, stated that neither the Court’s inherent jurisdiction nor its power under the applicable rule extended to reopeninga final decision of the Court. He continued: 16 The general rule that a final decision of a court cannot be reopened, subject to the exceptions to correct a slip in drawing it up, orwhere there was an error in expressing the manifest intention of the court, is not meant to provide an avenue to deal with arguments that

could have been advanced, but were not. This can be done on appeal. The rule providing for exceptions is meant to allow considerationof matters that must be dealt with in the sense that, had they been brought to the judge's or court’s attention at the time of the hearing, thejudge or court would have been obliged to take the matter into account. … In the remainder of ¶16 and ¶17, Jenkins C.J.P.E.I. gave examples of situations where the exceptions would apply, including whenmatters were not adjudicated.

None of the enumerated exceptions are applicable here. [34] The respondents seek to have this Court reconsider the same issues determined in a final decision and order. They haveadvanced no case law where an appellate court reconsidered the merits of its rendered decision and order.

More particularly, they havenot presented any decision where a court did so on the basis that its decision may be wrongly decided because of judgments which issuedafter that decision. [35] The question reduces to this: Assuming, without deciding, that the scope of inherent jurisdiction would permit areconsideration of the merits of the decision, is this a case where the respondents have established “extraordinary, compelling andexceptional circumstances” such that the court should re-open its decision because “justice manifestly requires”?

For the reasons whichfollow, I am of the opinion that the situation before us does not satisfy those criteria. [36] The respondents submit that they are driven to bring their intended Motion for Reconsideration because the civil cases theSupreme Court of Canada will hear are limited. In doing so, they point to this passage allegedly from Menzies v. Harlos, [1989] B.C.J.No. 1160, in which the British Columbia Court of Appeal was asked to reconsider its decision: ...

The Supreme Court has stated it is no longer a court for the correction of error and will only take those cases which involve points ofsignificant national interest. In the foreseeable future, most of the Supreme Court cases will be Canadian Charter of Rights andFreedoms … [37] The Court in Menzies noted how rare a request to reconsider is: The application is almost unprecedented in that it seeks a reconsideration of a decision on the ground that it is wrong.

It is not unusualfor an application to vary to be made and granted where the basis of the application is a demonstrable oversight or error in a particularaspect. An example in the area of fact is an error in calculation in relation to damages. An example in the area of law is reliance on astatute which has been repealed. It is a fundamentally different matter to allow a full reargument of issues which have been argued anddecided – to, as it were, allow a second kick at the cat.

That approach seems to be widely used by many American appellate courts buthas not generally been part of the tradition of courts in this country or elsewhere in the Commonwealth. [Emphasis added] [38] The passage from Menzies on which the respondents rely is actually from a dissenting judgment in the Saskatchewan Court ofAppeal decision of Armco Canada Ltd. v. PLC Construction Ltd., [1986] S.J. No. 799 (Sask. C.A.). Esson, J.A., writing for the BritishColumbia Court of Appeal, quoted it to illustrate the case for a more liberal approach to permit reargument. However, Esson, J.A. thencontinued: [24] . . .

Clearly, if that approach is to be taken, it must be taken cautiously to avoid the danger of opening the flood gates andimmersing the court in a flood of new work which, in the end, may serve mainly to add to the already intolerable cost and delay oflitigation. In Menzies, the Court held that whatever may be the scope of discretion for reconsideration, it would not be exercised in that case. [39] Menzies was decided some 25 years ago, and only a few years after the Charter came into effect. Since then, the SupremeCourt of Canada has issued many precedential decisions on the Charter and its

interpretation. While Charter issues continue to arise,many other questions in many other areas of the law are raised for determination. The Supreme Court of Canada remains a general courtof appeal for Canada. [40] The respondents’ argument that the Supreme Court of Canada cannot hear “all of the appeals, however meritorious or broadlyimportant” that are placed before it, amounts to a submission that the possibility or likelihood that it will not be granted leave to appeal tothat court should be taken into consideration. With respect, I disagree.

Whether – or not – the Supreme Court of Canada will grant leavecannot be more than speculative. In my view, that makes this an inappropriate factor to be considered in determining whethercircumstances are such that justice manifestly requires a reconsideration. [41] The respondents do not allege that this Court failed to address every issue it raised, based on the law at the time the appeal washeard and determined. They seek reconsideration on the basis of two decisions of the Supreme Court of Canada which they say wouldhave made a material difference in the result of this Court’s decision.

Yet, they did not advise this Court at the hearing, that the appealsin Fischer and Vivendi were to be heard by the Supreme Court of Canada, or request that the Court await those decisions beforerendering judgment. If, as they allege, the issues in those cases were such that their determination could have a significant impact on theappeal before this court, one would have expected such advice or request. [42] Reconsiderations of the merits of decisions based on allegations of subsequent changes in the law are likely to causecomplications in several different ways.

They would have a serious impact on the critical need for the finality of judgments. Partiesinvolved in ligation could not be sure of their positions following the decision. They would also be faced with the continuing prospectof future litigation, including the related expense, possibly years later. See Jhajj v. Canada (Minister of Employment & Immigration), (FC), [1995] F.C.J. No. 499 at ¶17,18 and 35. [43] Reconsiderations based on an alleged change in the law would also have a negative impact on the integrity of the court’sprocesses.

A decision of a higher court could ground applications for reconsideration in an indefinite number of previous cases in thelower courts. Moreover, a court would be faced with the prospect that its decisions could then have far reaching retroactive impact in an

unknown number of cases back for an indefinite period of time. This might inhibit it from freely making decisions, developing the law, and acknowledging previous errors. See Jhajj at ¶ 32 and 34 . [ 44 ] This Court rendered its decision and issued its Order in December 4, 2013. It addressed the merits of the appeal before it based on the law that existed then and was argued before it. None of the established exceptions to the doctrine of functus officio were raised by the respondents or relied upon by them. [ 45 ] The respondents rely on this Court’s inherent jurisdiction.

As I explained earlier, inherent jurisdiction is usually limited to procedural matters. Even there, it is to be exercised with caution and reserved for "truly exceptional cases" ( Central Halifax at ¶44). The respondents submit that this Court can and should use this special power to reconsider the merits of its decision and order which determined the essential issues before it. In order to dispose of this matter, I need not determine whether the scope of this Court's inherent jurisdiction extends that far.

In the particular circumstances here, I am simply not persuaded that the respondents have demonstrated "extraordinary, compelling and exceptional circumstances" or that "justice manifestly requires" a reconsideration of this Court's decision. [ 46 ] Their argument, namely, that decisions released after a court’s decision and order, can ground a reconsideration, has not been the basis of a successful reconsideration hearing by any Canadian court. Moreover, as I have explained, its acceptance would severely erode the principle of finality of judgments from courts which are subject to appeal.

It would cause uncertainty and additional costs for litigants, and could have far-reaching and unanticipated consequences for the administration of justice. [ 47 ] This is not a situation where justice manifestly requires a reconsideration. There is an appeal from the decisions of this Court to the Supreme Court of Canada. The respondents’ application to seek leave has been preserved pending this Court’s disposition of their intended Motion for Reconsideration.

If leave is granted, the Supreme Court of Canada will be asked to apply its decisions in Fischer and Vivendi , if appropriate, in determining the respondents’ appeal. Disposition [ 48 ] The respondents’ intended Motion for Reconsideration will not proceed to a hearing on its merits. The decision on costs on the appeal is under reserve. The costs of this matter will be determined in that decision. Oland, J.A. Concurred in: Farrar, J.A. Bryson, J.A.